Congressional Update: Reapportionment/Redistricting

January 25, 2011

At the end of December, the US Census Bureau sent to the President the results of the 2010 Census that determine Congressional reapportionment. View a video describing the reapportionment process released by the Census Bureau. Much has been made of the movement of Congressional seats from the Democratic Northeast and Midwest to the more Republican leaning South and West. This population migration will affect control of the House of Representatives and a few votes in the Electoral College.

More importantly, the census numbers reinforce one of the lasting outcomes of the November 2, 2010 election -- the shift of power at the state level from Democratic control to Republican control. Over the next year, many state legislatures will redraw district lines based on the new population counts recently released by the US Census Bureau.

The process of redistricting, the redrawing of district lines, is one that takes place every ten years. In most states, the elected legislators choose how to divide the state into districts to elect State House, State Senate and US House of Representative members. Twenty-one legislatures have systems that can call on recommendations from outside experts. Thirteen states have some form of a commission that recommends a plan to the State Legislature, but only California has non-elected government officials chose the Commission members. Seven others states have advisory or backup commission authority if the legislature cannot finalize a plan (only one, Mississippi has split control of the government where this might be an issue) and Iowa uses a unique system with legislative staff drawing the lines focusing only on population with no regard to party affiliations or where current elected officials live.

A former Chairman of a state legislative redistricting committee used to say “given a choice between a good candidate and a good district, I’ll take the good district every time.” With Republicans now poised to draw districts with limited to no input from Democrats in 20 states, these legislative advantages could be locked in for 10 years. In 2001, Republicans controlled 13 states. In 2011 they will have majorities in 23 of 26 houses losing only the Virginia Senate and both houses in New Jersey from 2001. Democrats did not do as well. Once holding control in seven states in 2001, they lost both houses in Alabama, North Carolina and Georgia in 2010.

The power of line drawing showed itself in stark relief in 2004 when Texas redrew maps after only two years when the State Legislature switched to full Republican control in 2002. The new lines for US House districts succeeded in defeating four Democratic incumbents and having one change parties for a net pick up of five Republican seats in the US House just from Texas. In context, this occurred in a year when Republicans gained only seven seats nationwide.

SO WHAT IS THE OUTLOOK FOR 2012 CONGRESSIONAL REDISTRICTING?

In the 18 states that either gain or lose seats, 10 are fully controlled by Republicans and three are controlled by Democrats. As the Texas example shows, deciding where new seats go or which seats to eliminate can enhance or overcome national trends. In the Republican controlled states, 10 seats will be added and five eliminated. That could mean adding ten Republicans to Congress while eliminating five Democrats. Democrats get to create one new seat and must eliminate two others. If both parties create for themselves and eliminate their opponents, that could mean a 12 seat gain for Republicans (equal to roughly 20 percent of their gains on election night) based on nothing more than how the lines are drawn.

You can quickly see how this can be multiplied state-by-state in the state legislatures. In 1990, Republicans controlled six state legislatures; in 2000 that number rose to 16 (equal to the number controlled by Democrats). After the elections in November, Republicans will have total control over 25 state legislatures with Democrats controlling 16. In the 21 states where Republican legislatures do not need to worry about a Democratic governor veto, 215 Congressional districts will be drawn. In contrast, in the 10 states where Democrats need not be concerned with a Republican governor veto only 61 seats will be drawn (even though California is in Democratic control, voters have chosen to have all 53 seats drawn by an independent commission). If you assume Congressional seats as a rough proxy for population, nearly half of all state legislative districts can be drawn with only input from Republicans while only 15 percent will be drawn with only Democratic input, nearly 15 will be done by independent commissions (California and Iowa) leaving a bit more than 20 percent to be drawn in bipartisan consultation.

Veteran political handicapper Charlie Cook of the Cook Political Report recently said “If you are a political party, you never want to have a really bad election, but if you’re gonna have one, you really don’t want to have it in a year that ends in a zero.” As a result of the November 2010 federal elections the Democrats will have a higher hurdle to clear to reverse the recent Republican gains in local, state and federal elections.

Keep these thoughts in mind when you listen to politicians discuss how to eliminate seats in eight states including New York and Massachusetts and add them in 10 states including Florida.

This advisory is for guidance only and is not intended to be a substitute for specific legal advice. If you would like further information, please contact the Edwards Angell Palmer & Dodge LLP attorney responsible for your matters or one of the attorneys listed below: